The 37th Amendment: A Novel (11 page)

“
What?
”

“Yeah, the governor ordered all the executions to go forward under the terms of the original sentences, now that the Ramirez Act has been overturned.”

“But I haven’t gotten any official notice.”

“You will, that’s what I’m calling to tell you. There’ll be a letter delivered to your office sometime today. They only have to let you know twenty-four hours in advance, but the letter will go out today to make sure you get it before tomorrow morning.”

Jackson didn’t notice that he had missed the turn to go around the block. “Right,” he said. “Hey, Brenda, thanks for the call. I appreciate it.”

“You’re welcome, hon. I thought you’d probably want to know as soon as possible.”

“Yeah. Thanks again. Bye.” He jabbed a button on the keypad and then punched in Dobson Howe’s number.

Dobson Howe was staring out the 23rd floor window at the partly cloudy May sky as the governor’s aide, Mark Galindez, explained in dry detail the low probability of a clemency request finding favor with the governor.

“Mark,” Howe interrupted finally, “I am in the process of developing new evidence.”

Galindez paused. “What kind of evidence?” he asked.

“Evidence of mistaken identity.”

“What have you got?”

“I have to have more time.”

“Dobson, what have you got?”

“Well,” Dobson hesitated. “Some material will be coming to me this afternoon.”

“So you haven’t even seen it yet?”

A soft chime sounded on Howe’s desk. “Just a minute, Mark,” he said. He pressed the handset against his chest and touched a button on the speakerphone. “Yes?”

“Mr. Howe, John Morley Jackson is on line four.”

“Tell him I’m on the phone with the governor’s office and I’ll call him back.”

“Yes, sir.”

Howe picked up the phone again. “I’m sorry, Mark.”

“Dobson, I’d like to help you here but I have to say, the chances don’t look good.”

“I understand, Mark, but if you’d just get the governor to call me back, all I need is a 30-day stay. I’m not asking for a pardon, or a commutation. Just a 30-day stay, that’s all. Just ask him to call me back.”

“I did ask him,” Galindez said gently. “He doesn’t want to talk to you.”

“God damn it, Mark!” Howe’s voice exploded against the windows of the office. “He has to talk to me. An innocent man’s life is at stake.”

Galindez sighed. “I’ll try again,” he said. “But if I were you, I’d be chasing down a justice of the California Supreme Court right now.”

“That’s my next call,” Howe said.

Howe’s assistant, Casey, had silently opened the door and was squeezed against the doorjamb, watching him with a look of concern on her face. Howe said a polite good-bye to Mark Galindez and hung up the phone. “I just heard,” he said.

“I thought you probably did,” Casey nodded. “Mr. Jackson heard from someone in the clerk’s office. He’ll be here shortly.”

“What’s the status on Margulies?”

“In conference. I left an urgent message.”

The telephone rang. Casey turned around to reach for it and crashed straight into John Morley Jackson. “What took you so long?” Howe asked irritably.

“Unexpected detour,” Jackson said. He stepped around Casey and walked into the office. “How did it go with the governor?”

“Haven’t spoken to him yet.”

A chime sounded on Howe’s desk. He touched a button on the phone. “Justice Margulies on line one,” Casey’s voice announced.

Howe pressed the button for the speakerphone. “Evan, how are you?” he boomed.

“Fine, Dobson, fine. I got an urgent message to call you. Everything all right?”

“Yes, yes,” Howe said confidently. “Fine. But there is an urgent matter concerning one of my clients. I’m hoping you’ll consider granting a stay while we develop some new evidence.”

“Well, as you know that’s not as easy as it used to be,” Margulies said. “What can you tell me about the case?”

“It’s the Robert Rand case,” Howe said.

“Oh! The Rand case. Oh, my.”

“We are developing significant new evidence of mistaken identity. Mr. Rand is innocent.”

“Oh, my. The Rand case.”

“I’ll have this new material in my hands later today or early tomorrow,” Howe said. “All I need is a 30-day stay of execution.”

“Have you spoken to the governor?”

“Not yet.”

“Okay.” Margulies sounded relieved. “Call me after you speak to the governor.”

“There isn’t much time,” Howe said. “The execution is set for the day after tomorrow at 9:00 a.m. We must have a stay.”

“I understand,” Margulies said. “Speak to the governor about it. I’m sure he’ll be receptive to your arguments, but if not, call me back.”

“All right, Evan.” Howe frowned. “Thank you.” He pressed the disconnect button on the speakerphone.

Jackson had settled in on the leather sofa and opened his briefcase on the coffee table. “I’ve got the habeas papers,” he said. “Who’s your favorite district court judge?”

“Doesn’t matter,” Howe said. “The answer won’t be yes anywhere.”

“That’s true,” Jackson said. “But we might get a temporary restraining order out of Judge Dunst. I think she might order a show cause hearing.”

 Howe shook his head. “There’s simply no federal issue,” he said.

“That’s true, too,” Jackson said. “But I’ll go over there today, and file the papers in her court. Then, if she turns me down, I’ll take my papers and walk them up to the nearest circuit judge.”

“What if she stalls you?”

“Well, I can’t wait. I’ll go to the circuit judge anyway.”

Howe sat down in the big leather chair behind his desk. He rocked it back and forth, saying nothing.

Jackson did not interrupt him.

Howe swiveled around to face the windows. He studied the contours of the city below, every edge of every building crisply defined in the bright May sunlight. Finally, he swiveled to face Jackson. “I think it’s time the U.S. Supreme Court heard a challenge to the statutory limitations on habeas corpus,” he said. He pressed a button on his phone. “Casey,” he said, “I have to fly to Washington D.C. What’s the latest flight I can get out on tonight?”

Ted came into work Tuesday morning to find a handwritten note on his desk. “I’m sorry about the delay on your info,” the note began. “My contact at LTN was out with the flu yesterday but I’m hopeful she’ll be back in the office today. Brianna.”

By the time Dobson Howe had checked in to the Washington D.C. Regency, showered, dressed and finished the first of two pots of lukewarm room service coffee, it was almost noon. The phone in his room rang. “Yes?” he answered.

“Mr. Howe, it’s Casey,” his assistant said. “Ted Braden just called. He said there’s been a delay in getting the information you wanted. He doesn’t know if he’ll be able to get it today.”

Howe sat down on the bed, instantly regretting that he had not chosen a chair closer to the second coffee pot. “Then I’ll just have to fake it,” he said.

Justice Joshua Weiss was on his feet and out from behind his desk before Dobson Howe was even through the doorway. “Dobson, how are you?” he said. “I wish I’d known you were in town, we could have played golf on Sunday.”

“Just got in today,” Howe said. He shook Justice Weiss’ outstretched hand, then found himself in a bear hug.

“Sit down, sit down,” he said. “Coffee?”

“No, thanks.”

“You look wonderful. Maybe we should all live in California.”

Howe smiled. “Well, Josh, today I’m grateful that you’re in Washington.”

Justice Weiss smiled his big, charming smile. “Why is that?” he asked.

Howe leaned forward and spoke in a subdued voice. “I’m here to ask you for a stay of execution in the Robert Rand case,” he said.

The smile faded from Justice Weiss’s face.

“There is new evidence,” Howe continued. “It is a case of mistaken identity.”

Weiss was frowning now. “Have you taken it to the governor?” he asked.

Howe hesitated. “The governor is reluctant to intervene,” he said.

“And your state Supreme Court?”

“Waiting for the governor to go first.”

Justice Weiss stood up and took a step toward a bookcase, then turned and walked toward his desk, then stopped pacing suddenly and turned toward Howe. “Where’s the federal issue?” he asked.

Howe opened his briefcase and took out a thick folder. “We are currently preparing an appeal to this Court of Mr. Rand’s conviction,” Howe said, “on constitutional grounds.”

“What grounds?” Justice Weiss asked skeptically.

“But the appeal will be moot without a stay of execution,” Howe continued, “because he’s scheduled to die tomorrow morning at 9:00 Pacific Time. I’m asking you to issue a stay pending the resolution of these issues.”

Justice Weiss stared at the floor. “Son of a bitch,” he said quietly.

Howe said nothing.

“You think he’s innocent?”

“It’s a case of mistaken identity.”

“I watched that trial on television like everybody else,” Justice Weiss said. “What about that girl who said she drove with him to the parking lot?”

“Lying.”

“Can you prove it?”

Howe was silent.

Justice Weiss returned to his armchair and sat down. “Now listen, Dobson,” he said. “We know each other since law school. I’m not going to bullshit you. And you’re not going to bullshit me.”

Howe looked up innocently.

“Don’t give me that,” the justice said. “You want me to order a stay of execution pending a meritless appeal, just to stall for time while you try to prove your theory of mistaken identity.”

Howe leaned back on the sofa but said nothing.

“Do you understand that you’re asking an Associate Justice of the Supreme Court of the United States to halt the lawful processes of the California criminal justice system, despite a constitutional amendment and forty years of decisions, including one this week, telling all branches of the U.S. government to stay the hell out of the states’ business?”

Howe nodded.

“Do you understand that if I do this, every death penalty defendant in every state court throughout the country will be pounding on the door of the U.S. Supreme Court, and one day one of them is going to get in, and then we’ll be on the path back to the 20th century, with every police department in the nation once again forced to operate under the supervision of this Court?”

Howe nodded.

“Well then I’m sure you understand,” Justice Weiss said, “why I’m not going to do it without seeing some proof.”

Howe was struggling to connect a piece of communications equipment through the data port in the hotel room’s telephone. Every time he plugged it in, it disconnected his call to his office in Los Angeles. “Casey? Hello?” he said. “Damn!” He yanked the connector out of the telephone and keyed in the number again. “Law offices,” Casey answered.

“It’s me, again, Casey,” Howe said. “I can’t get this thing to work.”

“I’ve been trying to tell you, Mr. Howe,” Casey said, “I have nothing to send you. Ted Braden said he’s still waiting for the material.”

“Oh, no,” Howe said. “Does he have anything at all? Get him on the phone. I’ll hold on.”

It took Casey less than a minute to track Ted down in a West Hollywood restaurant and connect him to Howe in a conference call.

“Ted? Dobson Howe.”

“Yes, sir,” Ted said, unwilling to mention Howe’s name in front of the client who was seated across the table from him.

“It’s critical that you tell me everything you’ve found out to this point about Robert Rand’s television appearances the week before his arrest,” Howe said. “Whatever you have. I need it immediately.”

“I’ll have to call you back from the office a little later,” Ted said, giving the client a reassuring smile. “There’s nothing I can tell you right now.”

It was 6:05 p.m. on the East coast when Ted finally called Dobson Howe’s hotel room. “Yes,” Howe answered. His voice sounded dispirited, or perhaps just exhausted.

“All right, I’ve got it,” Ted said. “There was a 30-second promo, plus a :15 and a :10. Robert Rand was in the :30 and the :15. I won’t have the actual videos until tomorrow night but I have the complete list of every time those two promos ran. Between May 7th and May 11th they were seen a total of sixteen hundred and seventy-two times in forty-five different places. Okay?”

“Better than okay,” Howe said. “Send it right over to Casey and she’ll figure out a way to get it to me.”

“Thank you for calling the office of Justice Joshua Weiss. The office is currently closed. Please call back between the hours of 8:00 a.m. and 6:00 p.m. If this is an emergency, please dial 0 for an operator.”

Howe jabbed the zero button on the hotel room phone. “Operator,” said a man’s voice.

“Good evening, this is Dobson Howe,” the lawyer boomed into the phone.